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From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 1 July 2010

Not that many IP related cases make it all the way to the German Federal Constitutional Court “Bundesverfassungsgericht” (not to be confused with the Bundesgerichtshof), so this Kat was intrigued to read about a constitutional complaint filed against a court decision that related to a copyright dispute.

The German Bundesverfassungsgericht (case reference: 1 BvR 1991/09 of 26 April 2010) recently decided in favour of an online map service provider that had filed a constitutional complaint against a court decision of the Amtsgericht Hamburg of 2 June 2009 (case reference: 36A C 60/09) concerning a copyright dispute between the online map service and a website owner that had uploaded one of the online map service’s copyrighted maps to its own website. The Hamburg court had not granted leave to appeal its decision in this dispute and the aggrieved online map service filed a complaint to Germany’s highest court citing a violation of its constitutional right to right to be heard (“rechtliches Gehör”) .

In the original case, which was decided by the District Court of Hamburg, the online map service had claimed damages from the website owner based on a copyright infringement claim. The online map service was of the view that uploading a cut-out part of one of its copyright protected maps onto the website owner’s website constituted copyright infringement. It appears that this map image was held on a homepage server and could also be found via a search engine. The map image was also be directly accessible by third parties when entering the website owner’s URL into an internet browser. However, it had been established that the map image on the website owner's website had de facto only been accessed by a small number of people.

The website owner’s daughter had retrieved the map image directly from the online map service’s intranet, which could only be accessed by entering a password. The image ended up on the freely accessible home-page server via a link.

The District Court of Hamburg decided that the actions of uploading and displaying the image on the website did not amount to 'making the copyrighted works publicly accessible' in the sense of Article 19a of the Germany Copyright Act (UrhG). The court argued that the map was not accessible for the 'general public via the usual ways of access'. This conclusion may appear slightly unusual at first but this is what the Hamburg court had decided.

But all was not lost. The Bundesverfassungsgericht, which can of course only look at this matter from a constitutional law point of view, decided that the Hamburg Court had infringed the online map service’s right to due process (Rechtsschutzgarantie) under Article 2(1) in combination with Article 20(3) German Basic Law (Grundgesetz), which is Germany’s constitution. The Bundesverfassungsgericht further held that the trial court should have granted leave to appeal under Article 511 (4) Sentence 1, No. 1, Alternative 3 German Code of Civil Procedure (ZPO) to allow for a ‘uniformity of judicature’.

Why "uniformity of judicature'? In its decision the Hamburg court had followed the reasoning and arguments of a precedent from the Regional Court of Berlin (case reference 15 S 1/07) which was a minority opinion within the precedents of the German courts. For those of you that are common law qualified, please note that the courts in Germany are a lot more independent in how they decide and which earlier court decisions they wish to follow - albeit not completely free as this case illustrates. The Berlin court, which the Hamburg court decided to follow, had previously decided that 'accidentally noticing' a copyrighted image or an 'intentional search or investigation by the copyright owner via a search engine or by using a searching software did not qualify as making “public” under Article 19a.

With the constitutional complaint having been successful, the online map service can now file its appeal.

Since the Regional Court of Berlin has since also changed its views on what constitutes “public” in the sense of Article 19a (and now follows the more obvious route of the Higher Regional Court of Hamburg (case reference 15 O 341/09), which assumes copyright infringement in such cases), the appeal might even be successful.

Without wishing to be overcritical, this civil law qualified Kat can't help but thinking that the Common Law approach of following precedents certainly has some advantages.... and one might also speculate as to what the trial judge at the Hamburg District court was thinking when he/she decided not to follow its own Higher Regional Court in Hamburg and at the same time also denied the right to appeal.

The Bundesverfassungsgericht's decision can be retrieved by clicking here.

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